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Opinion: U.N. Ruling is Turning Point for Overlapping South China Sea Claims

A map of China's shifting definition of the so-called Nine-Dash Line. US State Dept. Image

A map of China’s shifting definition of the so-called Nine-Dash Line. US State Dept. Image

The United Nations Permanent Court of Arbitration handed out a decision on Thursday that the Republic of the Philippines’ case against the People’s Republic of China regarding Law of the Seas violations can be heard. This long-awaited decision marks a turning point in the complex landscape of international legality as more maritime nations seek to establish boundaries on their oceanic and littoral territories.

The court now moves to hear the merits of the case, with a decision expected sometime in 2016. A decision favorable to the Philippines could set the stage for that country’s legal standing on existing claims in the contested Spratly Islands, and further isolate China as the emerging maritime power seeks to consolidate its hold upon valuable resources in the South China Sea.

The Philippines filed their case in 2013, following several years of persistent and repeated Chinese intrusions and violations into what is considered territorial waters. Aside from water-hosing fishermen, taking a fishing shoal by force and harassing a military outpost, China also comprehensively expanded the Spratly Islands and features already under their control. The latest being the creation of a 10,000 foot long runway at Fiery Cross Reef that grants China the ability to control the airspace over the disputed territory. As the weakest military in the region, the Philippines could only resort to the United Nations Convention on Law of the Sea, accusing China of multiple violations of UNCLOS provisions.

asiafineThe majority of the Philippine claims against China specifically call out their seizure, reclamation and build-up of features (i.e., rocks and shoals) does not entitle them to permanent presence and use of the Philippines EEZ or territorial waters. In addition, China has consistently used law enforcement entities (i.e., the China Maritime Coast Guard) to effectively enforce foreign policy by reportedly arresting and abusing Filipino fishermen. There are also claims of environmental damage to specific areas in the Spratlys that China currently occupies.

The ruling wasn’t a slam dunk for the Philippines, however. The Permanent Court has also required the Philippines to clarify and expand upon several additional claims that are not currently covered by the case moving forward. Notably among those is why China’s infamous Nine-Dash Line claim is unlawful, and how features such as Second Thomas Shoal and Mischief Reef fall within the Philippine’s EEZ.

While the Arbitration Court’s decision is welcomed as a victory for the rule of law, even a ruling in favor of the Philippines will not change the status quo. China has repeatedly and publicly rejected the authority of the Arbitration Court, stating that the Philippines had not yet exhausted bilateral negotiations. Notably, during the buildup to the hearing decision, China had also rebuffed calls to send representation to the court and chose instead to publish heavily detailed position papers outlining their perspective. For all practical purposes, China has well established outposts, some newly reinforced, and is not expected to vacate them regardless of the court’s ultimate decision on the merits of the Philippine’s case.

An undated photo of the amphibious BRP Sierra Madre the Philippines have used as an outpost in the South China Sea

An undated photo of the amphibious BRP Sierra Madre the Philippines have used as an outpost in the South China Sea

What then are the options for the Philippines? For starters, the practical approach is to start reinforcing outposts already established in the island group. The Aquino administration and the Department of Defense have been vacillating over this move even before the U.N. case was filed. It was only recently, thanks in no small part to extensive media coverage of poor conditions, that the Philippines had aggressively resupplied and reinforced the tiny Marine detachment at Second Thomas Shoal. There is a sense that the political leadership is hesitant to conduct any further reinforcement for fear of endangering a positive ruling for the Arbitration case. In reality, funding, a lack of logistical lift and in many cases proper receiving ports and shore-side facilities are preventing any practical upgrades of existing outposts.

Efforts should be made to come to a conclusion over the status of Scarborough Shoal. Out of all the Chinese claims, this particular location falls well within the traditional 200 nautical mile EEZ from the mainland of Luzon. Taking notice of the 2014 skirmish with Vietnam, it’s clear China will escalate to a situation short of war to get its way. However, it’s also quick to de-escalate, and since the Philippines still enjoys a traditional and formalized defense treaty with the United States, there is political and operational breathing room to confront China using the same Operations Other Than War (OOTW) tactics by using non-military and civilian assets.

Finally, taking a cue from the United States, the Philippines and other claimants should establish their own Freedom of Navigation patrols in the region. What would be even a more powerful statement would be joint FONOPS to improve interoperability and as a political show of solidarity.

  • John B. Morgen

    As I said this before, the Philippines really needs to modernize its military; especially, its navy. The navy should scrap any old warships, and replace them with much newer hulls. Furthermore, the United States could provide additional military assistance; for example, build air fields on these islands and other structures.

    • FedUpWithWelfareStates

      Why should we build THEIR airfields? The Philippines has NOT been a trustworthy Allie…

      • John B. Morgen

        I believe they are changing their tone towards the United States, and we need them, including their little islands. To act as forward bases to enhance the concept of freedom of maritime navigation in the South China Sea.
        As for building airfields, I think we would be able to use them for our aircraft, besides their aircraft. The world is changing, and what happen during the last century, stays in that century. We are going to need many allies as possible to stop China’s expressionism in the South China Sea; including Vietnam–our old enemy.

  • publius_maximus_III

    So, a UN decision to make a decision. Earth shattering. No doubt the PLAN will sit up and take notice now…

    • FedUpWithWelfareStates

      Exactly! Premature celebration & even if it was ruled in their favor eventually, good luck trying to get China to abandon them. The Philippines should focus on governing their mainland & stop having visions of being a country that they are not…

      • Just The Facts

        Once the decision is made that China violated Vietnamese sovereign rights, then sanctions and damage awards begin to muck up the works.

    • USNVO

      It is a positive sign as it is the first time the UN, teethless as it is, has actually agreed to take a case where only one side complained. The Phillipines has an additional case pending for a clarification of Scarborough Reef. If, as expected, the UNLOS tribunal indicates it’s a reef as reality dictates, then it will not confer either a territorial sea or a EEZ, totally torpedoing China’s case. Of course, China doesn’t agree with that one either but is treaty bound to accept it. The Phillipines clearly has some good lawyers on its side.

  • Russ Neal

    The American people do not want our military all over the world maintaining peace and restraining the aggression of other powers like China. They want that money devoted to welfare programs. China has taken our measure and decided we will not react to their salami slicing strategy. Soon the facts on the ground will establish the South China Seas as de facto Chinese territorial waters.

    • muzzleloader

      You DO NOT speak for this American pal, nor for any American I associate with !

    • John B. Morgen

      You are a pure isolationist, and also someone that Prime Minister Chamberlain would be proud—you Russ Neal..

    • SaltyDog

      I don’t think Russ is advocating for socialism over military programs; I think he’s just looking at the headlines. The ACA, Bailouts, $15 minimum wage….we (the collective we) continue to elect the people who enact these programs which can be labeled as socialist in nature. By that measure, it would appear that in fact, the American people want “stuff” instead of substance.
      Russ – am I wrong here?

      • Russ Neal

        You are right.

    • John B. Morgen

      That is what world history would call it—appeasement…..

  • sferrin

    Oh look. We’re getting ready to think about deciding if we want to fire off a harsh memo.

  • disqus_zommBwspv9

    Like the Chinese are going to listen to the UN Will Vietnam, Philippines, and Japan will take a aggressive stance?

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  • Hugh

    The Chinese continue to harden their position. Shades of Germany 1939 and Japan 1941.

    Not long after the US sailed a destroyer through what China considers its sovereign territory in the South China Sea, official organs of the Communist Party of China punched back. An editorial in China’s Global Times opined that, ‘In [the] face of the US harassment, Beijing should deal with Washington tactfully and prepare for the worst. This can convince the White House that China, despite its unwillingness, is not frightened to fight a war with the US in the region, and is determined to safeguard its national interests and dignity.’

  • John B. Morgen

    China is using the old Soviet Union paradigm of establishing buffer states or zones of security control; something like the Warsaw Pact. China is not only establishing buffer zones for political-military control, but also economic zones as well. Such an enterprise is requiring the PLAN to broaden its [Blue-Water Fleet], just not to remove away the lesser powers, but also intimidate and prohibit any attempts from the United States might make against China’s expansionism. It is quite similar policy that Hitler had in mind when the Z-Plan was drawn up for Germany’s massive naval build-up; it was also meant to forced Great Britain to joined Germany’s war against the Soviet Union.For this paradigm, China wants a free hand, and the only hand in the South China Sea.